Supreme Court Embarrasses Itself in Colorado Election Case

The Suprme Court has once again injected itself into a political thicket, with predictably embarrassing consequences. By ruling yesterday that Donald Trump must remain on the Colorado ballot, the Court ignores the plain text of the Constitution. The result is that the Court will continue its descent into irrelevancy.

The Court obviously decided how it wanted to rule, and then searched for some legal justification. Usually, the Court is able to come up with a plausible rationale for its concluson; but here, there was no plausible rationale, so the Court had to simply ignore the law and make something up.

The Constitution gives each state legislature the power to choose the electors from that state to the Electoral College. If they want to, they could choose them directly, rather than having the voters decide. These days, each state has elections, but the power to run those elections rests with the state. There are no federal questions involved.

Colorado ruled that Trump's participation in an insurrection disqualified him from its ballot, in accordance with the 14th Amendment. The Supreme Court ruled that Colorado couldn't apply the 14th Amendment, because Congress had not passed any "enabling legislation". This despite the fact that nowhere in the Constitution does it say that the insurrection provision cannot apply absent enabling legislation from Congress.

The irony is that five of the conservative justices, who like to advocate for a literal interpretion of the Constitution, chose to completely ignore the text of the Constitution.

An interesting aspect of the written opinions is that the five men constituted the majority, while the four women concurred in the result but wrote concurring opinions complaining that the majority had gone too far, deciding issues that didn't need to be reached to decide the case. And the four women included conservative justice Amy Coney Barrett, along with the three liberal justices.

In my Constitutional Law class, many years ago, we learned that the Supreme Court doesn't get involved in "political questions". There was a good reason for this, as the Court is supposed to be above politics. The idea is that political questions should be decided in the political arena, not in the legal arena. Sadly, the current Court ignores this time-honored principle, and in the process has disgraced itself.